Chapter Four: Reactive Solut ions after Trafficking for African Countries 233
4.4 The Investigation of Child Trafficking in Africa
4.4.1 Analysis of the Investigative Methods Used Around the World
Most African countries are criticized for not following procedures to identify trafficked victims among vulnerable groups, such as girls in prostitution,street children and illegal immigrants subject to deportation.i'" The police in most countries lack any mechanism for systematic collection of data concerning arrests, investigations or prosecutions of trafficking offences.i'" Victims are inappropriatelyincarcerated or fined for unlawful acts committed as a direct result of being trafficked and thepolice,labor inspectors and social welfare officials possess little understanding of the crime or are not viewing it as part of their responsibilities to stop it.267
Investigation of trafficking cases is a challenge for most African countries.According to Newman, 'carefully analyzing the local problem will help design a more effective response strategy.,268 The problem faced by investigation teams is the hidden nature of the exploitation of trafficked children, which takes place in isolated locations, such as domestic homes and brothels.i'" Newman notes that in the case of sexual exploitation, although trafficked children are hidden from public view, the weakness of commercial sexual exploitation is that traffickers must come out of the isolation in order to attract clients,through advertisement forinstance.27o
Front line officers in different units and functions, namely front-line patrol officers, traffic police and border personnel may come acrosstrafficked children, may patrol areas where exploitation sites are located, may observe, notice and check sites where exploitation takes place. They havebeen trained, in countrieslike the US,once in contact
~65See TIP reportop citnote 2 above at52-229 ; see also ProtectionProjectsop citnote 108 above.
_66TIP report at 52-229.
267HumanRig ts Watc (2007)h h Keep your HeadDown: UnprotectedMigrantsin South Africa available at www.childtrafficking.com!contentllibrary/ (accesse d 12 June, 2009) at 5. See TIP report op cit note 2 above at 52-229.
268 GR Newman The Exploitation of Traffi cked Women (2006) available at www.childtrafficking.com/contentllibrary(access ed 18 July2008)at23.
269Ibid.
270Ibid. Indicators of the presence of traffick ed women and venues where they may be found include:
'buildings with heavy on-premises security, such as barred windows, locked doors and electronic surveillance;and buildings in whichwome n both liveand work.'
with suspected trafficked children cases,on how to manage them.27 1The US have created specialized anti-trafficking units within law enforcement forces.272 The objectives of these specialized units include 'working collaboratively to identify victims and convict individuals engaged in severe forms of human trafficking, providing for the safety of victims and meeting their needs through quality service provision, and increasing task force presence within the community.,273 Fruitful results have been reported from this specialization. Depending on the availability of resources, this option can also be commendable for African countries.
The role of police forces in dealing with trafficking cases should consist not only to investigate and produce evidence,but also to assure protection to child victims during the post-identification process.v'" Once more, the challenge faced by police officials who come across a trafficked child is that often traffickingcases are not apparent upon first contact. Victims usually provide incomplete or wrong information due to fear and trauma.275 It is necessary to analyze all indicators of trafficking and try to discover if enough signs are present to suspect that the child is a victim of trafficking.276 Effective response to investigation of human trafficking necessitates a collaborative, multi- disciplinary, coordinated and well-planned action. In fact, there are three major
271ICMPD op cit note 259 above at 7. Front line officers must know how to identify victims and take appropriate action,such as treating the personas a victim of aserious crime,facilitating the referral of the person to specialized support services,treating thecase with confidentiality required by a potential criminal investigation and, if the person is an unaccompanied minor, immediately facilitating the referral to a guardian as prescribed by the CRe.
272HJ Clawson,N Dutch& M Cummingsopcitnote255 above at VII.
273Ibid.
274ICMPD op cit note 259 above at 19.
275 Ibid. In accordance with United Nations standards and principles, if some elements indicate that an individual may be the victim of a trafficking scheme, ' the person should not be detained, charged or prosecuted for the illegality of his/her entryinto or residence in countries of transit and destination,or for the involvement in illegal activities, to the extent that such involvement is a direct consequence of their situation as trafficked persons' (UN OHCHR Recomm ended Principles and Guidelines on Human Trafficking(2007)).
276 Ibid at 29. Generic clues are: 'evidence of persons being controlled,evidence of an inability to move freely or leave the workplace, bruises or other signs of battering and violence, difficulty or inability to communicate in the local language and other languages,transportedfrom other part of the world/State/part of the country,lack of passport,immigration or identification documentation,do not have cash nor access to money,suspicion of fake passport, signs of fear, signs of depression,and insecurity.'
investigative approaches used around the world: reactive investigation, proactive investigation and disruptiveinvestigation.i"
Reactive or victim led investigation is used in cases where victims come to the attention of a law enforcement agency. The following responses may be applicable:
immediate intervention against thetraffickers in order to rescue other victims,to prevent further potential victims from being entrapped, or to secure evidence that may otherwise be lost or compromised;utilization of the intelligence or statementof the victim or third party as the basis for developing and conducting a proactive or disruptive investigation into the trafficking occurrence; utilization of the intelligence or statement as the basis for an in-depth, intelligence gathering operation into the traffickers.:m
Where there is enough evidence to suspect someone ofbeing involved in trafficking,that person should be arrested no matter how marginalhis or her role first appears to be.279 In order to maximize the arrest of the suspects and to rescue more victims, the action taken should be quick and well organized.P" Critics to this approach state that reactive investigations are often the least effective option for investigation because of the versatility of victims. For instance,a victim may at first make a statement and promise to testify in judicial proceedings and suddenly withdraws his/her cooperation which can jeopardize the investigationprocess.i'"
A second approach, namely the proactive approach , consists of initiating the investigation, arrest, and prosecution of traffickers without necessarily relying upon victim's cooperation and testimony.282Techniques that investigators can use to identify and prosecute traffickers are: 'a combination of intelligence, human and technical surveillance, undercover deployments, even authorized under the law, and standard investigative techniques.,283 Although the proactive option allows the law enforcement
'277G Gutu RegionalLegal BestPractices in Assistance to Victims of Trafficking in Human Beings (2007) available atwww.childtrafficking .com/content/library (accessed 18 July2008) at 39-41.
'278Ibidat 21.
"79 A d' G . h
- ccor mg to utu, expenence as shown that the major players in any network usually take every precaution to conceal their part in the crime.
'280Ibid.
'28\Ibid.
'28'2Dowell&Prodamiuk op cit note 263 above at 96.
'283Clawson,Dutch& Cummings opcitnote 255 above at 23.
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agencies to take steps to combat human trafficking without the complaints and evidence of the victims, the testimony of the victims will always remain indispensable for a successful prosecution of traffickers.284
A third approach, the disruptive approach is used where the reactive or the proactive approach is impossible. Circumstances allowingtheuseof the disruptive approach are:
Where the level of risk to thevictims demandsanimmediate response;
Where the proactive approachis not viable for operational reasons, such as where geographical and jor topographical features make surveillance on target premises impractible, or where it is impossible to achieve undercoverpenetrationof thenetwork ;
Where legislative, procedural orresource implica tion s preclude the rise of a proactive approach;
and
• Where the disruptive approach provides a faster response to specific complaints from local residents or other affected groupS.285
The disruptive approach is criticized for being simply a disruption. It might provide temporarily relief of the situation in that few victims might be rescued, but usually does not solve the problem and often only displaces the problem to another location.i'" The success in the use of the disruptive intervention requiresmore resources and the creation of new multi-agency techniques to cause many dailyproblems for traffickers and to make it impossible for them carry on with their operations.i'"
284 Ibid.Authors note that' Joint investigationteam: joint proactiveoperations tend to be the most effective counter-trafficking approach for law enforcement. Subject to extraditionlaws and the circumstances of the case, investigators from the origin and destination States can implement a pre-agreed, proactive joint operation whereby the evidence is simultaneously collected ineach State with the objective of mounting the prosecution of the traffickersin oneof the two countries. '
285Ibid.
286Ibid. When dealing with sophisticat ed transnational organiz edcrimes,article 20 of the Trans-National Convention specifically endorsesthe investigati vetechniques of controlled delivery,electronic surveillance and undercover operations if permitted by the basic principles of a State's domestic legal system.
According to Clawson, Dutch & Cummings, these techniques are particularly useful in dealing with sophisticated organized criminal groupsbecause of the dangers and difficulties inherent in gaining access to their operations and gathering informationand evidence.
287According to Clawson,Dutch&Cummingsdisrupti veactivitymayalsodisrupt existing criminal plans and quickly render some previously useful information and intelligence useless. Under certain circumstances , some accused persons may be encouraged to collaborate with law enforcement, as informants,through the useofsuch thingsasmonetary rewards,immunity from prosecution or a reduction of sentence. Article 26of the Trans-National Convention recognizes this and requires States parties to consider providing for these possibilities. The specific steps to be taken are left to the discretion of the States.
Dowell and Prodamiuk note that successful prosecution must be based on a combination of proactive, reactive and disruptive investigations.i '" Relying only on one of these approaches can be detrimental for the investigation process.i'" The use of proactive investigation is commendable in cases where trafficked victims are not willing to report or testify, and thus, it is necessary to corroborate the process with indications resulting from searches, raids in brothels, labour inspections or other investigations.i'" The testimony of the victims is vital to the entire investigation, as the victims can provide important details of the trafficking process: traveling details from the country of origin, through countries of transit, to the country of destination, and the role played by different
. . I 291 cnrmna groups.
The use of disruptive methods requires more resources and specialized units; so far it has been used only in developed countries like the US, Canada and Australia and appears expensive for African countries. A combination of the reactive approach and proactive approach has produced positive results in countries like Madagascar. The fight against trafficking in children for sexual exploitation,labourservitude and child sex tourism has been a success for the Malagacy police thanks to the combination of the two above mentioned methods.i'" Combining the reactive approach and proactive approach can be recommended for other African countries. Although victims can be rescued and come forward to testify, the State will have overwhelming evidenceagainst potential suspects if corroborated by some material elements.